Motion: prior testimony admissibility

📄 Motion: prior testimony admissibility — Wednesday, November 6, 1996

Address:

C:\DEPT103\CIVIL\1996\NOV\6\MOTION-PRIOR-TESTIMONY-ADMISSI.DOC

TRIAL

▲ Day 10 of 57

◀ Redirect examination of Michael Romano Direct examination of Mark Krueger ▶

Date: Wednesday, November 6, 1996 • Utterances: 17

Plaintiffs sought to read in criminal trial testimony from four photographer witnesses they claimed were unavailable. The judge allowed prior testimony for three of the four, but questioned whether Stewart West was properly served — distinguishing between mailing a subpoena and actual service — and left open the question of whether West could be compelled to appear.

# 1 MR. GELBLUM:

Your Honor, next we have a series of four people, also who are photographers who took pictures of Mr. Simpson. All of them are unavailable, and all of them, we'd like to read in their criminal trial testimony.

# 2 MR. BAKER:

I'd object to the reading of -- there's been no showing of unavailability. There has been no showing of unavailability of Stewart West.

# 3 MR. GELBLUM:

Your Honor, he lives in the Oakland area. And 20 -- 2025, we can use his deposition if he's more than 150 flight miles from here. It's trial testimony.

# 4 MR. BAKER:

Your Honor, they subpoenaed him and they have served him, and he should be here to be examined.

I think that the subpoena power is in effect throughout the state.

# 5 THE COURT:

What is the code section we referred to earlier with regards to distances?

# 6 MR. GELBLUM:

I'm sorry, Your Honor; I referred to 2025, which is for depositions, Your Honor. 2025(u), I believe it is.

# 7 THE COURT:

Not if this witness has been subpoenaed.

# 8 MR. GELBLUM:

We did send him a subpoena.

# 9 THE COURT:

Excuse me?

# 10 MR. GELBLUM:

We did send him a subpoena.

# 11 THE COURT:

Did you send him or serve him?

KEY QUOTE

# 12 MR. GELBLUM:

We sent him a subpoena. We contacted him by phone. He agreed to accept service; we sent it by mail, and we haven't heard back.

# 13 THE COURT:

Excuse me?

# 14 MR. GELBLUM:

We sent him -- we mailed him, after he agreed to accept the subpoena by mail, and we have not heard back from him since.

KEY QUOTE

# 15 MR. BAKER:

There's a proof of service, Your Honor? That doesn't look like a proof of service to me.

KEY QUOTE

# 16 THE COURT:

All right. With regards to all of the other named persons in the declaration, I'll allow the deposition.

You may offer me some points and authorities as to whether or not this witness should be ordered to appear by body attachment or otherwise.

# 17 MR. GELBLUM:

Very good. Thank you, Your Honor.

We'd like to do it similarly as we did before, with reading of the testimony.

I'd like to have my colleague, Yvette Molinaro, take the stand.

Temperature

procedural

Key Quotes (3)

Hiroshi Fujisaki

Did you send him or serve him?

Sharp distinction drawn by the judge — highlights that mailing a subpoena after a phone agreement does not constitute proper service.

Robert Baker

There's a proof of service, Your Honor? That doesn't look like a proof of service to me.

Baker challenges the adequacy of plaintiffs' subpoena process for Stewart West.

Peter Gelblum

We sent him -- we mailed him, after he agreed to accept the subpoena by mail, and we have not heard back from him since.

Plaintiffs' counsel admits the informal nature of service — agreed by phone, mailed, no confirmation received.

Evidence (2)

Informal

Criminal trial testimony of four photographer witnesses

plaintiffs seek to read into record under unavailability exception

Informal

Declaration listing unavailable witnesses

referenced by judge in ruling

Notable Exchanges (2)

Peter Gelblum•Hiroshi Fujisaki

Gelblum cited CCP 2025 (deposition distance rule) to justify West's unavailability; judge immediately noted it does not apply when the witness has been subpoenaed, putting Gelblum on the back foot.

strategic/corrective

Hiroshi Fujisaki•Peter Gelblum

Judge pressed twice with 'Excuse me?' forcing Gelblum to clarify the informal nature of service — mailed after phone agreement, no response.

pointed

Objections

1 objections (0 sustained, 0 overruled)

Proceeding 8175 • 17 utterances

Civil Trial

Department 103